Delhi District Court
M.V Rajpurohit vs . M/S Paul Ball Bearing Co. Cc ... on 24 February, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-1,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010
24.02.2014
JUDGMENT
(Brief reasons for decision as required by section-264 Cr.PC.) Story of friendly loan of Rs. 4,00,000/- has been tried to be set up by the complainant in discharge of which he claimed to have received the instant two cheques totaling Rs.2,00,000/- from the accused as part consideration.
2. Unfortunately, in a trial of cheque bounce cases, similar type of questions crop up. One regular phenomenon is the question of issuance of more cheques of same date to same person for discharge of a single transaction. Generally no explanations are provided by any complainant. I have not been able to find any ground on which this can be justified. If any person wants to pay some amount to another person through cheque on a single date, he will naturally issue one single cheque of the total amount and even the receiver will prefer one single cheque instead of two cheques. Of course, this may be subject to a condition that if such person does not have the entire amount in his own bank account to complete the total amount to be given, he may issue one cheque of one bank account for some some amount and second cheque from his other bank account for remaining amount. Otherwise, no one will issue more cheques of same date to same person to pay a single loan amount and no one will receive more cheques of same date for the same. Though the human behaviour differs, however, as a standard of reasonable prudent person, the above inference may be accepted.
3. Now coming to the factual matrix of the present case. Complainant has indicated three persons as accused in the complaint i.e. Firm, Yashpal and Ganga Ram and used the plural sense in the averments such as "Accused persons are known", "their genuine problems", "Accused have issued", "to apprise them", "they put off the matter" and such like averments.
M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010 1 3.1. The cheques in question belong to partnership firm and the same have to be treated to be issued by the firm itself as a separate legal entity.
3.2. From the complaint and affidavit, it is not clear as to whom the loan was given. Whether the loan was given to the Firm or to Yashpal or to Ganga Ram. The position is clearly raising an inference that the story tried to be built up by the complainant is vague.
4. However, in the cross-examination, the complainant stated that he had given the money to Yashpal and his cousin partner. Which cousin? Which partner? Nothing has been explained by the complainant. Even, it is not clear as to what portion of amount was given to whom. Even the ld. counsel for the complainant, deleted Ganga Ram fro array of accused on 07.05.2007 before the ld. predecessor. It seems that complainant was not even aware as to whom the loan was given. Claim made by him in the cross-examination was clearly an afterthought.
4.1. Complainant should have come to the court with clear factual positions to get the relief and not with the intention to conceal facts from the court.
5. Be that as it may. In my view, even if a cheque is given to discharge the liability of some one else, the said cheque will fall under Section-138 NI Act. (see I.C.D.S. Ltd vs Beena Shabeer & Anr 2002 AIR SC 3014).
5.1. In the present case, even if the loan was given to any one, since the cheques so issued belong to Firm, the said cheques will fall under Section-138 NI Act making the Firm liable if liability is established. And then with the help of Section-141 NI Act, partner will also become liable.
5.2. So the prime question is as to whether the loan was actually advanced or not. Complainant apart from relying on mandatory presumptions has not brought anything on record to establish the advancement of loan. He has not even disclosed as to when the loan was so M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010 2 advanced. He accepted in the cross-examination that he had not shown the advancement of loan in his Income Tax Return and that even he had not told such facts to his CA.
5.3. In the complaint and affidavit of complainant, there was no averment of interest on loan, but in the cross-examination, the complainant introduced a story that the loan was given on interest. In my considered view, apart from being an improvement, the claim made regarding interest also will hardly go alongwith the claim of friendly loan made in the complaint. Even further, he claimed that interest was paid in advance. What total amount on account of interest and for what period was paid in advance has not been disclosed by the complainant. The circumstances do not raise confidence in the version of complainant.
5.4. Complainant then in the cross-examination introduced a document Ex. CW1/X claiming that the document pertains to the loan. In my considered view this document can not be relied upon. In the complainant and affidavit, no claim about any document was made by the complainant. No explanation has been provided by the complainant for not filing of such document with his complaint or affidavit. Moreover, the complainant has not been able to connect the accused with this document Ex.CW1/X in any manner. Ex.CW1/X can not be relied upon.
5.5. The complaint has not even disclosed the source from where he got or arranged the amount of Rs.4,00,000/- to be given to the accused. In cross-examination, the complainant stated that the loan was given in the year 2000 and that too in cash. Naturally, at such time, an amount of Rs.4,00,000/- was to be treated as a huge money. And availability of such a huge amount of Rs.4,00,000/- in cash at such time is seriously doubtful.
5.6. Complainant has not even disclosed as to when he received the cheques in question. The cheques bear a date 08.04.2002 whereas from the cross-examination, it seems that, complainant wants to claim that the loan was given in the year 2000. It can hardly be believed that even after two years the complainant agreed to receive cheques only totaling Rs.2,00,000/- instead of the total alleged amount of Rs.4,00,000/-. Complainant has not stated anything about any action M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010 3 taken for recovery of balance amount of Rs.2,00,000/- out of the loan.
6. The above enlisted circumstances show that the complainant has no foundation to built his claim made in his complaint regarding advancement of loan and receiving of cheques in discharge thereof.
7. I am not oblivious of the fact that there are mandatory presumptions of law but, however, such presumptions are always rebuttable even by preponderance. It is well settled law that the mandatory presumptions of law can only be inferred in furtherance of prosecution stand and not in derogation of the same. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt-see Mahesh Prasad Gupta v. State of Rajasthan(1). Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under s. S (1) (2) of the Prevention of M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010 4 Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
8. In view of the above, I am of the opinion that complainant has failed to establish the liability and the accused have been successful in rebutting the presumptions. As such accused are entitled for an acquittal from the charges in the present complaint case i.e. u/s-138 NI Act.
9. In view of the above, the accused Firm and accused Yashpal are acquitted from offence under Section-138 NI Act and Section-141 r/w 138 NI Act respectively in the present complaint case.
10. A copy of this order be placed on the official website of the District Courts.
(RAKESH KUMAR SINGH)
MM-(NI Act)-Central-01/THC/Delhi
24.02.2014
M.V Rajpurohit Vs. M/s Paul Ball Bearing Co. CC No.5092/2010 5